Week 8 Lecture Notes
Covers narrow ultra vires in administrative law—when decision-makers act beyond their legal powers. Topics include statutory interpretation, procedural breaches, jurisdictional facts, and leading cases like Project Blue Sky and Kioa v West.
Daniel Miller
Contributor
4.1
45
3 months ago
Preview (4 of 12)
Sign in to access the full document!
Lecture Notes
Introduction to Narrow Ultra Vires
' Lthra v -as is when a d e d » o n - m a k a r T i t a s a aecsicn -diet i beyond h a w k e y are al ewed
tc exercise their power.
Definitions
Jurisdiction ■ power to docide U ltrs Vires ■ beyond power
* The exercise of executive power may involve:
>an administrative decision,
>an administrates action, or
>a tegislative acton (delegated legislaton’)
> can only be renewed through common law
■ There s no a rc jn-sta nces w are a c sc sicn-rr akar has uftirr ate p o w e r .
■ The scope as to where e decision- T a k e r ' s power beg ns and ends will always be e
question of a ■..
• Al i administrative powers are limited.
* The courts use the ultra vires grounds of review to
identity and enforce limits an power.
-Question of law
Power
Introduction to Narrow Ultra Vires
' Lthra v -as is when a d e d » o n - m a k a r T i t a s a aecsicn -diet i beyond h a w k e y are al ewed
tc exercise their power.
Definitions
Jurisdiction ■ power to docide U ltrs Vires ■ beyond power
* The exercise of executive power may involve:
>an administrative decision,
>an administrates action, or
>a tegislative acton (delegated legislaton’)
> can only be renewed through common law
■ There s no a rc jn-sta nces w are a c sc sicn-rr akar has uftirr ate p o w e r .
■ The scope as to where e decision- T a k e r ' s power beg ns and ends will always be e
question of a ■..
• Al i administrative powers are limited.
* The courts use the ultra vires grounds of review to
identity and enforce limits an power.
-Question of law
Power
* An adminisiralive decision or action ttial is beyond a
power's limit is ...
> ultra vires, and ...
> an error of law, and ...
> trivahd.
* Traditionary, ultra vires has been the principal way
that the common law has woited to keep the
executive accountable.
* The procedures that must be followed before the
power can be exercised.
* The subject matter over which power is granted.
* The actions that power is granted to perform.
Ultra Vires and Statirtory Interpretation
Classic Prosu rnptions nl Statutory Interpretation
• Courts ShiuJd flrve ar. nilfip’irtllkjr Ifial gives tiled M |l:e u'dedyny
purpose of the staluto over n irfafprelataii that wflctd tend to deical
1hat purpose The purposive approach is P» prefenw! and odhockw
appnjaci k> statutory interpxlatKzi: Acte !'ir&7XEiaHorT fid ?90f (Cth)
s15AA (+■ s15AE]; Acts InIsrpefaliorr Act f9K (CH) sUA [+ sUB;
■ Remedy statutes nr siaintes designed in confer a beneft. sfrruXd be
iite iy construed
■ lecslalkn should nol be inte'p'tfad as derigra'irg longStandng
cornrrwn law rights and freedoms wifoutbear words (eg.' Jraedorn
of contract, property rgils, piracy and trespass;
■ letrda&cri shoiAd n« Irrpose retwpectiv* obligation* unless mere
are clear words
■ Express powers endixta addiboral mplied powers
> le sJaben dcesn t regtriti access ro Cajrts wthcul very c '.ear words
(and even Lnen Courts read sucft reslncticns very nsrroty)
power's limit is ...
> ultra vires, and ...
> an error of law, and ...
> trivahd.
* Traditionary, ultra vires has been the principal way
that the common law has woited to keep the
executive accountable.
* The procedures that must be followed before the
power can be exercised.
* The subject matter over which power is granted.
* The actions that power is granted to perform.
Ultra Vires and Statirtory Interpretation
Classic Prosu rnptions nl Statutory Interpretation
• Courts ShiuJd flrve ar. nilfip’irtllkjr Ifial gives tiled M |l:e u'dedyny
purpose of the staluto over n irfafprelataii that wflctd tend to deical
1hat purpose The purposive approach is P» prefenw! and odhockw
appnjaci k> statutory interpxlatKzi: Acte !'ir&7XEiaHorT fid ?90f (Cth)
s15AA (+■ s15AE]; Acts InIsrpefaliorr Act f9K (CH) sUA [+ sUB;
■ Remedy statutes nr siaintes designed in confer a beneft. sfrruXd be
iite iy construed
■ lecslalkn should nol be inte'p'tfad as derigra'irg longStandng
cornrrwn law rights and freedoms wifoutbear words (eg.' Jraedorn
of contract, property rgils, piracy and trespass;
■ letrda&cri shoiAd n« Irrpose retwpectiv* obligation* unless mere
are clear words
■ Express powers endixta addiboral mplied powers
> le sJaben dcesn t regtriti access ro Cajrts wthcul very c '.ear words
(and even Lnen Courts read sucft reslncticns very nsrroty)
> Purposive InterpreiHtion
Waters if pL'Wrc Transport CCVT1711SLIL11? (1991} 103 ALR 513
>Did the Vide- an Squal Opportunities Board possess lhe
power to investigate a complaint against a decision to
replace tram conductors with ticket venS'ng machines
under an express power to investigate ‘discrimination on
the ground of disability?
> T h e principle that reqtires that the partcular provisions of
the Act must be need in the light d the sWtutcry ob.eels is
ol particular significance in the case d legislate which
protects or entrees human rights: (per Mason CJ and
Caudron J at 520).
Common law principles and Individual rights
• A well-asteblislwd common taw prmopte ot statutory
Irrterpfetaton is the presumption that legisalures do not
intend 10 en ower ctecteton-maim to aversely impact
individual ngfili unless there is a clear intention to the
contrary.
* firopto v Western Ausfrafia (1990} 171 CLR 1: Crown was
bourxJ 10 comply wth statutory protections of an Aboriginal
hentaga site. The HC said
>11 is '... improbable that the legislature would overthrow
fundamental prinoptes, infringe ghts or dec-art from the
general system of law. without expressing its intention wlh
irresistible clearness.' (at 17-10)
* Cocc v R (1994) 120 ALR 415: the H 01 Court herd tiat a genarailh-
w d M acttinisWlw power to auifonse police to irstai a HsHnqj
device to collect evdence did not rictode a power authoreing secral
entry to the house m oner lo Instar fie device
However, the prolection of common lew nghti can often conflict
wllti Mhanetaig ItM objects of legislation with e remedial purpose.
■ Arthwy Lagcai Sialno Pty Ltf v Mawcs (197B) 74 ALR 77
> The painttffS sough* Io overturn an cmer of the Carrrnlsaoner
attowng the Northern Land Ccuncl to acctss crown tend subjeci
to a land rights claim The pianirffs pastoral ease surrounded the
tend subject to Hie dam.
> FC held the order was ultra vires (2 1) and split war whether the
legislator needed to specify a power ‘wen nesisfiNe
rteamess'.
> As t a po«cr had nd t«r. ini nJ d enrty in th* erjsn- n fd ornr r of
r*i Cciii'i'ifiHorrH' was lAS 6'ul.
Waters if pL'Wrc Transport CCVT1711SLIL11? (1991} 103 ALR 513
>Did the Vide- an Squal Opportunities Board possess lhe
power to investigate a complaint against a decision to
replace tram conductors with ticket venS'ng machines
under an express power to investigate ‘discrimination on
the ground of disability?
> T h e principle that reqtires that the partcular provisions of
the Act must be need in the light d the sWtutcry ob.eels is
ol particular significance in the case d legislate which
protects or entrees human rights: (per Mason CJ and
Caudron J at 520).
Common law principles and Individual rights
• A well-asteblislwd common taw prmopte ot statutory
Irrterpfetaton is the presumption that legisalures do not
intend 10 en ower ctecteton-maim to aversely impact
individual ngfili unless there is a clear intention to the
contrary.
* firopto v Western Ausfrafia (1990} 171 CLR 1: Crown was
bourxJ 10 comply wth statutory protections of an Aboriginal
hentaga site. The HC said
>11 is '... improbable that the legislature would overthrow
fundamental prinoptes, infringe ghts or dec-art from the
general system of law. without expressing its intention wlh
irresistible clearness.' (at 17-10)
* Cocc v R (1994) 120 ALR 415: the H 01 Court herd tiat a genarailh-
w d M acttinisWlw power to auifonse police to irstai a HsHnqj
device to collect evdence did not rictode a power authoreing secral
entry to the house m oner lo Instar fie device
However, the prolection of common lew nghti can often conflict
wllti Mhanetaig ItM objects of legislation with e remedial purpose.
■ Arthwy Lagcai Sialno Pty Ltf v Mawcs (197B) 74 ALR 77
> The painttffS sough* Io overturn an cmer of the Carrrnlsaoner
attowng the Northern Land Ccuncl to acctss crown tend subjeci
to a land rights claim The pianirffs pastoral ease surrounded the
tend subject to Hie dam.
> FC held the order was ultra vires (2 1) and split war whether the
legislator needed to specify a power ‘wen nesisfiNe
rteamess'.
> As t a po«cr had nd t«r. ini nJ d enrty in th* erjsn- n fd ornr r of
r*i Cciii'i'ifiHorrH' was lAS 6'ul.
Preview Mode
Sign in to access the full document!
100%